Digital Theses Archive


Tesi etd-09282018-200207

Type of thesis
The European standardisation system: Regulation, interest representation, judicial review
SCIENZE GIURIDICHE - Individual Person and Legal Protections
relatore Prof.ssa PALMERINI, ERICA
Presidente Prof.ssa NAVARRETTA, EMANUELA
  • EU law
  • European standard
  • Harmonised Standard
  • single market
  • Standardisation
Exam session start date
European standardisation of product requirements: Juridification, Interest Representation, and Judicial Review<br><br><br>The rules on products design, characteristics, and performances may vary significantly from country to country. That exposes manufacturers and importers willing to trade cross-border to a double regulatory burden: both the home and the host country legislation shall be taken into account when designing, manufacturing, and packaging products. The European Union deals with technical barriers in the product market through a complex and stratified regulatory apparatus that includes harmonisation legislation, technical standards issued by private bodies, and administrative provisions. Jointly considered, these measures form a consistent body of rules which govern the marketing of products in the European Union. The following pages intend to trace the drivers, institutions, and regulatory techniques shaping one of the layers of EU product market regulation: technical standardisation.<br>The analysis is composed of two main parts, which group three and four chapters respectively. <br>Part one analyses the regulatory layers that contribute to creating an Internal market “without internal frontiers in which the free movement of goods, persons, services and capital is ensured” (Article 26(2) TFEU). Three main – intertwining – layers of EU product regulation are distinguished, namely free movement law, harmonisation legislation, and technical standards. In this manner, the broad normative framework that underpins this dissertation will be outlined.<br>Chapter one explores the meaning and evolution of Article 34 of the Treaty on the Functioning of the European Union (TFEU). Intended as the pillar of thye cross-border trade of goods, Article 34 TFEU sets the overarching framework that inspires EU harmonisation and technical standardisation policies. Since the earliest days of the Community, the challenges posed by technical barriers to trade have required a continuous revision and adaptation of the taxonomy of national rules caught by Article 34 TFEU. The case-law of the Court of Justice took the leading role in crafting a notion of “measures having equivalent effect to quantitative restrictions”, that serves as the regulatory playing-field of the European trade. <br>Product requirements entered into the scope of application of Article 34 TFEU (at least) with the Cassis the Dijon judgment, and stayed at the centre of free movement law since then. <br>Chapter two considers EU harmonisation measures in the product market. Within the context established by primary rules – and with the intended purpose of addressing its shortcomings – legislative harmonisation seeks the positive integration of national markets establishing uniform, European-wide product requirements. The first comprehensive wave of legislative approximation of products requirements was prompted by the so-called “Old approach to technical harmonization”. The regulatory technique put forth by the “Old Approach” turned to be extremely time-consuming, inefficient, and incapable of coping with the pace of technological progress. Building on the notification system of technical rules introduced by the 1983 Information Directive, the Council and the Commission endorsed a radical regulatory reform towards a “New Approach to Technical Harmonisation and Standards”. The “New Approach” sets up an innovative public-private cooperation that decouples technical standardisation and legislative harmonisation. The setting of common product requirements remains a prerogative of European legislature, which issue essential health and safety requirements products must fulfil, according to the procedure established under Article 114 TFEU. The detailing of those requirements through technical standards is instead outsourced to selected private associations: the European Standardisation Organisations (ESOs). Downstream of the New Approach, certification, accreditation, and market surveillance mechanisms support the integration of national product markets and ensure that harmonisation measures are properly enforced and translated into manufacturing practices. <br>Chapter three deals with European standard-setting activities more specifically. The taxonomy of European standards will be described, highlighting the varying interplay of public and private powers upon which technical standards rely. In particular, the case of Harmonised Standards (HSs) implementing EU legislation will be taken into account. Moreover, the analysis will consider the peculiar regulatory effects that technical standards may exert on market dynamics. The impact of European standardisation in EU public procurement law will be at first outlined. Secondly, the intersection between standards and private law will be investigated. <br>Part two further builds upon the role of technical standardisation in the EU and highlights the drivers responsible for the juridification of HSs. The analysis stresses how standards increasingly depart from the industrial circle they have flourished within and intersect public law principles and controls. First, this tendency will be highlighted by reference to the “constitutionalisation” of the Commission’s standardisation requests – i.e., the legal acts through which the Commission requests the ESOs to draft a HSs. Second, the new framework for stakeholder representation in European standardisation will be considered. Third, the openings of the Court of Justice towards judicial scrutiny on HSs will be investigated. <br>Chapter four will explore the multiple bipartitions that underline the European standardisation model. The clear-cut divisions between law and standards, politics and science professed by the New Approach will be challenged in light of the perceived bindingness of standards by market players and the insights offered by the case-law of the Court of Justice. The blurred boundary between law and standards sketches the background of the process of juridification of the European standardisation system, which will be highlighted in the following chapters.<br>Chapter five will stress the role of public law within the European system of technical standardisation, touching upon the ex-ante and ex-post mechanism for curtailing the discretion of the European standardisation bodies. The constitutional positioning of the Commision’s standardisation requests will be in particular investigated. The embedding of these measures within the category of Comission’s “implementing acts” in the meaning of Article 291 TFEU supports the juridification trend of European standardisation. Nevertheless, albeit their formal legal status, standardisation requests maintain marked contractual features.<br>Chapter six analyses the abstract conditions and practical unfolding of interest representation in European standardisation, considering the case of CEN and CENELEC, two of the three standardisation bodies entrusted with the making of European standards. Specific attention is paid to the involvement of the Annex III organisations (A3Os) – i.e., the associations championing diffuse interests at European level – in the planning and drafting of standards. This chapter will show that the procedural framework provided by the Standardisation Regulation has re-shaped the internal rules of the European standardisation bodies, which are because of that more aligned with public law demands. The analysis is inspired by empirical insights, which the author gathered through a set of semi-structured interviews held in March and April, 2017. <br>Finally, Chapter seven will consider that, partially as a consequence of the enhanced public law role in standardisation, HSs have recently come under the eyes of the Court of Justice. The routes towards a meaningful involvement of the Court of Justice into European technical standardisation will be outlined, distinguishing between “direct” scrutiny of HSs, and “indirect” review of standardisation outputs through the annulment of the Commission’s standardisation requests. <br>